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Genetic testing discrimination at work: It’s against the law

In November 2009, a federal law called the Genetic Information Nondiscrimination Act, or GINA, went into effect, making genetic discrimination in the workplace illegal. Unlike some more familiar types of employment discrimination, such as racial or
gender discrimination, many workers are unaware that it is illegal for employers to discriminate on the basis of genetic information.

What is genetic information?

According to the U.S. Equal Employment Opportunity Commission, the term "genetic information" applies to information about:

  • A person’s genetic tests
  • The genetic tests of a person’s members
  • A person’s family medical history
  • A person’s previous receipt of (or request for) genetic services
  • Participation by a person or his or her family members in a clinical trial that involves genetic services

The definition also applies to genetic information about a fetus carried by a pregnant worker or family member, as well as to genetic information about embryos legally held by an employee or family member in the course of using in vitro fertilization or other assisted reproductive technologies.

The law extends to genetic information about an employee or applicant’s family members because people’s family medical histories can often be used to determine whether they face an elevated risk of developing certain
disabilities or other medical conditions in the future.

How does GINA protect workers?

Genetic information discrimination can take many forms. GINA provides that employers are barred from discriminating on the basis of genetic information in any aspect of employment, including decisions about:

  • Hiring, firing and layoffs
  • Salary and wages
  • Job responsibilities
  • Promotions
  • Training opportunities
  • Eligibility for benefits

The prohibition of genetic information discrimination also extends to decisions about any other aspect of employment.

What other protections does GINA provide?

Protection against genetic information discrimination is not limited to decisions about the terms and conditions of employment described above; it also protects workers against genetic discrimination in other forms, including harassment and retaliation on the basis of genetic information.

GINA makes it illegal to harass a worker or applicant because of his or her genetic information, for instance by making derogatory comments about the genetic information of the individual or his or her family members. This type of harassment constitutes illegal discrimination when it becomes so severe or pervasive that it results in a hostile work environment, or when it results in an adverse employment decision affecting the targeted individual, such as
termination or demotion.

It is not required that the perpetrator of the harassment is the worker’s employer or supervisor; GINA also protects against harassment by co-workers, other employees, clients and even customers.

What if I have experienced genetic discrimination?

In addition to the protections outlined above, GINA also provides that workers are protected from retaliation in the workplace for speaking out against discriminatory practices, filing a discrimination charge, or participating in an investigation or other discrimination proceeding. This allows workers who witness illegal discrimination to come forward and help put a stop to the behavior without fear of retribution.

If you believe you have been subjected to illegal genetic discrimination in the workplace, get in touch with an experienced employment lawyer in your area to discuss the details of your situation and explore the possibility of moving forward with a legal claim.

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